Bringing a case against racial profiling

It was on their way back from a funeral 17 years ago that Robert Wilkins, an African American lawyer based in Washington, and his family were stopped by police on a motorway in Maryland in United States.

Speaking at an event on the sidelines of the Durban Review Conference - “Voices – Everyone affected by racism has a story that should be heard”, Wilkins said he would never forget that morning of May 1992. He was asked by police officers to stand in the rain while his car was being searched by a narcotics dog and motorway users watched the scene as they drove past.

Wilkins had rented a car to go to Chicago overnight. This detail may seem insignificant but, as Robert Wilkins later uncovered, it was one of the police’s primary reason for stopping the car. He also believed they had been the victims of racial profiling, a practice that still persists in law enforcement today.

Racial profiling is defined by the Durban Declaration and Programme of Action as “the practice of police and other law enforcement officers relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity.” It is in essence a practice contrary to internationally recognised human rights norms and standards.

Racial profiling has proven to be an issue in the current political context because of its role in anti-terrorism measures. Special Rapporteur on the promotion and protection of human rights while countering terrorism, Martin Scheinin noted that since 11 September 2001 law-enforcement authorities across the globe have adopted measures based on “terrorist profiles” which include characteristics such as race, ethnicity, national origin or religion.

The issue of profiling was addressed at the Durban Review Conference and mentioned in the Conference’s Outcome Document.

At “Voices”, Wilkins recalled a police officer telling his cousin who was driving the car that he had “paced him” driving 60 miles per hour in a 40 miles per hour zone. The officer then took his driver’s licence and the rental car contract and returned to his police car. He returned a short while later and requested to search the car.

“I told the officer that we did not consent to him searching anything and that my understanding of the law was that he could not search our car unless he was arresting my cousin and was making a search incident to that arrest”, Wilkins recounted. He added that the officer informed him that such searches were routine and that there had been problems with rental cars on the motorway with drugs.

Wilkins offered to provide proof he was indeed returning from a funeral and not engaging in criminal activity. But the policeman insisted on bringing a dog to the scene.

The Wilkins eventually reluctantly agreed to the search. “It is hard to describe the frustration and pain you feel when people presume you to be guilty for no good reason and you know that you are innocent.”

Robert Wilkins and his family felt humiliated by the experience. They decided to sue the State of Maryland to seek justice and also to set a precedent which would stop such practices. It was at the beginning of the legal process that Wilkins received the Maryland State Police’s “Criminal Intelligence Report”, a document he described as a racial profile.

“The Criminal Intelligence Report discussed the crack cocaine problem in the Cumberland, Maryland area, and recklessly and indiscriminately advised state troopers that the traffickers “were predominately black males and females” and that these dangerous armed traffickers generally travelled early in the morning or late at night along Interstate 68, and that they favoured rental cars with Virginia registration. Well, we fit the profile to a tee.”

In court, Wilkins’ lawyers overturned the report, proving that profiles were irrelevant when controlling motorway drug trafficking. It appeared that drugs were found in all types of vehicles driven by people of all races and age.

The Wilkins eventually won their court case in 1995 with a financial settlement of US96,000 dollars. Among other provisions reached through the settlement were the prohibition of the use of race-based drug courier profiles as law enforcement tools and the training of officers on the new policy.

This landmark victory was tempered with reports of old habits enduring. In fact Wilkins said that another court ruling was made in 2003 in an attempt to ensure full implementation of the 1995 decision. “I still hear about troubling incidents on the highways in Maryland, including reports from African American motorists about illegal stops, searches of cars, and even strip searches by police”, Robert Wilkins said. “Almost 100 official complaints have been filed since 2003, but the Maryland State Police has never found a single one of those complaints to be sustained.”

Seventeen years after the incident with the police, he still wonders how much progress has been made to fight racial discrimination and whether legislation in America is strong enough to foster change.

“Racial profiling has taken a critical turn after September 11. Before that date, there was more acknowledgement that racial profiling had no appropriate role in law enforcement. After September 11, they started backing off on some of those statements.”